Citation Nr: 0303977
Decision Date: 03/07/03 Archive Date: 03/18/03
DOCKET NO. 99-06 320A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for a kidney disability,
other than nephrolithiasis, claimed as a residual of
exposure to Agent Orange.
2. Entitlement to service connection for peripheral
neuropathy, claimed as a residual of exposure to Agent
Orange.
REPRESENTATION
Appellant represented by: The American Legion.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran had active service from January 1968 to November
1969, including service in the Republic of Vietnam. He had
additional service in the New Mexico Air National Guard.
In a May 1979 decision the Board of Veterans Appeals (Board)
denied service connection for a right kidney disorder. In a
decision of July 1983 the Board found that new and material
evidence had been submitted to reopen and grant a claim for
service connection for nephrolithiasis. (The RO subsequently
assigned a 10 percent rating for this disability, effective
from March 19, 1979.) In an unappealed rating action of June
1994 the RO denied service connection for kidney disability
claimed as secondary to exposure to Agent Orange.
This matter now comes before the Board on appeal from an
August 1997 rating action by the RO that denied a claim for
service connection for a right kidney disorder claimed as a
residual of exposure to Agent Orange. In the August 1997
rating action, the RO also denied service connection for
peripheral neuropathy and fungus of the feet claimed as
residuals of exposure to Agent Orange.
In April 1999 the veteran appeared and offered testimony at a
hearing before a hearing officer at the RO. A transcript of
this hearing is of record. The veteran again appeared and
gave testimony at a January 2002 RO before the undersigned
Board member and a transcript of this hearing is also of
record.
In a rating action of August 2001 the RO granted service
connection for diabetes mellitus as a residual of exposure to
Agent Orange and also granted service connection for a fungal
infection as secondary to diabetes mellitus. In view of this
rating action granting secondary service connection for a
fungal infection decision, the veteran's claim for service
connection for a fungal infection of the feet as a residual
of exposure to Agent Orange has been rendered moot.
Accordingly, only the issues listed on the title page of this
decision are before the Board for appellate consideration at
this time.
As a preliminary matter, the Board notes that, in an
unappealed June 1994 rating decision, the RO denied service
connection for "agenesis of the left kidney and hypertrophy
of the right kidney." The veteran has since been diagnosed
as having renal insufficiency, and thus the Board agrees with
the RO that the new diagnosis represents a new claim and VA
must consider this issue de novo. See Ephraim v. Brown, 82
F.3d 399 (Fed. Cir. 1996).
FINDINGS OF FACT
1. During service the veteran was noted to have congenital
agenesis (absence) of the left kidney and developmental
hypertrophy of the right kidney secondary the absence of
the left kidney.
2. Aside from service connected nephrolithiasis, the veteran
does not have an acquired kidney disorder.
3. Renal insufficiency is not due to exposure to Agent Orange
during service.
4. Peripheral neuropathy was not demonstrated during service
and has not been clinically demonstrated subsequent to
service discharge.
CONCLUSIONS OF LAW
1. A kidney disability other than nephrolithiasis, claimed as
a residual of exposure to Agent Orange, was not incurred
in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116(f)
(West 1991 & Supp. 2002); 38 C.F.R. § § 3.303(c),
3.307(a)(6), 3.309(e) (2002).
2. The veteran does not have peripheral neuropathy claimed as
a residual of exposure to Agent Orange that was incurred
in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116(f)
(West 1991 & Supp. 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, there has been a significant change in the law
during the pendency of this appeal. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West Supp. 2001). The VCAA eliminated the well-grounded
requirement and modified VA's duties to notify and assist
claimants. 38 U.S.C.A. §§ 5103, 5103A, 5107(a) (as amended).
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. It also includes new notification
provisions. Specifically, it requires VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.
It is noted that in a March 2001 letter, the RO informed the
veteran of the provisions of the VCAA and the relevance of
this legislation to his current claims. This letter advised
him of the evidence needed to substantiate his claims, and of
who was responsible for obtaining what evidence.
Moreover, the veteran had been informed of the pertinent law
and regulations governing the current claims in a statement
of the case dated in April 1999, as well as in additional
supplemental statements of the case dated in July 1999 and
August 2001. These communications also served to advise him
of the evidence needed to substantiate these claims.
The veteran has also had the opportunity to provide testimony
regarding his current claims before a hearing officer at the
RO in April 1999 and at an RO hearing before the undersigned
Board member in January 2002. In addition he has been
afforded a recent VA medical examinations in regard to the
disabilities that are the subjects of his current claims.
Otherwise, it does not appear that any clinical evidence
relevant to the veteran's current claims is available, but
not associated with the claims folder. Because VA has
complied with the notice requirements of the VCAA and has
afforded the veteran necessary medical examinations, and
since there is no known outstanding evidence; there is no
reasonable possibility that further efforts could aid in
substantiating the veteran's current claims. 38 U.S.C.A.
§ 5103A(a)(2).
The Board will therefore proceed to consider the claims
currently in appellate status on the basis of the evidence
currently of record.
I. Factual
Basis
Review of the veteran's service medical from his period of
active service showed that he was seen in March 1969 with
complaints of slight dysuria and penile pain. He reported
seeing blood clots on his shorts. X-rays showed two small
radiolucencies in the bladder area and an intravenous
pyelogram showed no filling on the left. It was reported
that there was a rather elongated right calyx and there was
dilation of the distal ureter. During a subsequent
hospitalization in March 1969 the impressions on admission
were history of terminal hematuria, hypertrophy of the right
kidney and a nonfunctioning left kidney. After studies were
conducted during the hospitalization it was concluded that
the left ureter seemed to terminate at the L3 level with a
blind ureter. Subsequent studies showed a large right kidney
with two major arteries supplying this kidney, but no
arteries were noted on the left. At the time of discharge
from the hospital, the diagnoses were complete agenesis of
the left kidney and a large right kidney secondary to
compensatory hypertrophy. (During this hospitalization, the
veteran reported that he passed a calculus, but none was
recovered.)
An intravenous pyelogram performed in June 1969 revealed
prompt excretion from the right kidney. A cystoscopy
revealed no stones, tumor, or diverticula. The right
ureteral orifice was noted to be quite patulous in size and
the left ureteral orifice was present, but no urine flowed
from the left ureteral orifice. The diagnosis was congenital
absence of the left kidney. Renal scan showed findings
compatible with absence of the left kidney and hypertrophy of
the right kidney. After physical examination for a medical
board conducted in October 1969, the diagnoses that included
agenesia of the left kidney; history of renal stone, not
recovered; and no abnormalities in work-up. The veteran's
service medical records reveal no complaints or findings
indicative of peripheral neuropathy.
During a work-up conducted while the veteran was hospitalized
by the VA in March 1970 for right back discomfort, the
veteran denied recent symptoms of urinary tract infection or
lower tract obstruction. The kidneys were non-palpable on
evaluation. Repeated urinalysis testing and a urine culture
were normal. An intravenous pyelogram showed a large right
kidney with lobulation and slight ureteral dilation at the
bladder entrance. There was no evidence of strictures or
calculus and no evidence of a left kidney. A renal scan
showed some small amount of functioning tissue on the left
that measured about 6 centimeters in length. The diagnoses
included hypoplastic left kidney.
On service department examinations conducted in January 1975
and January 1978, neurological evaluations were reported to
be normal. Urinalysis tests were reported to be within
normal limits. The diagnoses included history of right renal
stone and absence or hypoplasia of the left kidney.
An April 1978 intravenous pyelogram showed a 2 to 3
millimeter, irregular calculus superimposed upon the mid
portion of the right kidney. There was compensatory
hypertrophy of the right kidney. With the exception of the
tiny calculus, the calcices and ureter appeared to be normal.
Impressions were non-functioning left kidney and small
calculus in the right kidney.
During a hearing at the RO in July 1978 the veteran indicated
that he had had kidney problems during service and thereafter
had urinary and kidney problems.
On a service department examination in June 1979 a
neurological evaluation was normal.
In an August 1979 statement for purposes of a retirement from
the civil service, the veteran complained of tingling and
numbness in the extremities.
During a VA data base examination for possible exposure to
toxic chemicals in February 1980, it was said that the
veteran's physical problems could not be related to his
exposure to Agent Orange.
During an April 1982 Board hearing at the RO the veteran
related a history of blood in his urine during service in
Vietnam and said that, during the evaluation for this
condition he was found to have an absent left kidney.
In a statement dated in December 1982, a university professor
of renal medicine indicated that he had reviewed the
veteran's medical record and stated that he concurred that
the veteran's absent or atrophied left kidney was unrelated
to service. The doctor also said that the veteran had
hyperparathyroidism during service and that this disorder is
a prime source of renal stones.
During a VA neurological examination in February 1984 the
veteran gave a history of hyperparathyroidism and complained
of severe muscle spasms and marked neuromuscular problems in
his extremities. At the conclusion of the evaluation the
examiner said there was no evidence of neuromuscular disease
and he believed that the veteran's symptoms were probably
psychologically determined.
During a hospitalization by the VA in May and June 1987 for
the treatment of muscle cramps and pain secondary to a
parathyroidectomy it was noted that the veteran denied
numbness in the extremities.
On a VA Agent Orange screening examination in April 1990,
there were no reported complaints or findings indicative of
peripheral neuropathy. The veteran did report a history of
kidney stones in 1968 and 1981.
During VA outpatient treatment in November 1991 for a right
shoulder and elbow strain, the veteran complained of tingling
in his right hand. It was reported that sensation to light
touch was intact. During treatment in January and February
1992 for radiculopathy at C7-8, sensation in both upper
extremities was noted to be intact. In June 1992 it was
reported that electromyographic studies were normal.
Following a VA hospitalization from October to December 1993,
the diagnoses included mild renal insufficiency with stable
creatinine. During a subsequent VA hospitalization in
February 1994, it was noted that the veteran creatine had
improved from 1.6 to 1.5 with BUN also slightly lowered. He
was thought to have chronic renal insufficiency.
While being seen by the VA as an outpatient in October 1996,
the veteran reported that he had had tingling in the hands
and feet since 1968. There had been no recent changes and
these symptoms did not interfere with day to day activities.
The veteran said that the symptoms worsened if there was a
"circulation block". An assessment of questionable
peripheral neuropathy was rendered. When seen in May 1997 it
was reported that the veteran's sensation was intact. It was
reported that there were no neurological findings.
During an April 1999 hearing at the RO the veteran indicated
his belief that he had kidney disability and peripheral
neuropathy due to his exposure to Agent Orange.
During a May 1999 VA neurological examination the veteran
complained of unpleasant and tingling sensations in his hands
which occurred two or three times a week. He also
experienced the same type of sensations in his feet, although
these occurred less frequently. The veteran did not know of
any precipitating or aggravating factors in regard to these
symptoms. He said that he had been told that such symptoms
might be associated with peripheral neuropathy due to
exposure to Agent Orange. Evaluation revealed a normal gait.
Deep tendon reflexes were very brisk in both the upper and
lower extremities. The veteran was said to be generally
hypertonic. While testing for sensory deficits, the examiner
that there seemed to be a poorer tactile sensation on the
left foot than on the left thigh, but this was not consistent
on the right side. Light touch sensation was said to be
ambiguous. The cranial nerves and optic fundi were reported
to be within normal limits. There was no visible muscle
wasting or atrophy. The veteran's complaints were
characterized as neuralgia and it was reported that the hands
were affected equally. Nerve conduction studies were
conducted and showed no evidence of peripheral neuropathy.
The diagnoses included, essentially, unpleasant sensations in
the hands of long duration of uncertain etiology, periodic
discomfort in the feet with numbness and unpleasant
sensations of unknown etiology, paresthesias of unknown
etiology, and no evidence of peripheral neuropathy.
On VA genitourinary examination in May 1999 the veteran gave
a history of kidney stones with the most recent episode
occurring about 15 years earlier. It was also noted that the
veteran had a vestigial left kidney. The veteran's current
complaints were constipation, frequent muscle spasms, cramps,
lethargy, and weakness. There were no complaints of urinary
frequency, incontinence, or urinary tract infections. There
was no evidence of nephritis or malignancy and there was no
history of catheterizations, dilations, or drainage
procedures. No recent invasive or noninvasive procedures
were reported. It was reported that there was no evidence of
any genitourinary disease on the examination. The diagnoses
included a previous history of kidney stones due to
hyperparathyroidism, resolved after parathyroidectomy, and a
vestigial left kidney.
During VA outpatient treatment for lower abdominal pain in
November 1999 a CT scan revealed an absent left kidney and a
normal right kidney. VA clinical records reflect outpatient
treatment during 2000 and 2001 for various complaints and in
the course of this treatment the veteran was noted to have
renal insufficiency manifested by elevated creatine levels.
On a VA examination of the veteran's spine conducted in May
2001 it was noted that there were no neurological
abnormalities found during the examination.
At a January 2002 RO hearing before the undersigned Board
member, the veteran said, essentially that while peripheral
neuropathy and current kidney disability had not been
demonstrated medically he was concerned that such may occur
in the future. He also opined that peripheral neuropathy and
kidney disability could exist but are masked by the treatment
and medication provided for other disabilities such as
diabetes.
II.
Legal Analysis
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110 (West 1991 & Supp. 2002). Service
connection may be granted for disease diagnosed after service
providing the evidence establishes that it was incurred
during service. 38 C.F.R. § 3.303(d) (2002). Congenital and
developmental abnormalities are not diseases within the
meaning of legislation providing compensation benefits. . 38
C.F.R. § 3.303(c) (2002)
A veteran who served on active duty in the Republic of
Vietnam during the Vietnam era shall be presumed to have been
exposed to a herbicide agent unless affirmative evidence
establishes that the veteran was not exposed to any such
agent during service. 38 U.S.C.A. § 1116(f) (West Supp.
2002).
Thus, service connection may be presumed for residuals of
exposure to Agent Orange by showing two elements. First, a
veteran must show that he served in the Republic of Vietnam
during the Vietnam era. 38 U.S.C.A. § 1116 (West 1991 &
Supp. 2002); 38 C.F.R. § 3.307(a)(6). Secondly, the veteran
must be diagnosed with one of the specific diseases listed in
38 C.F.R. § 3.309(e). Service connection for residuals of
Agent Orange exposure also may be established by showing that
a disorder resulting in disability is, in fact, causally
linked to such exposure. See Combee v. Brown, 34 F. 3d 1039,
1044 (Fed. Cir. 1994).
Review of the service medical records show that the veteran
was found to have absent left kidney that resulted in
compensatory hypertrophy of the right kidney during service.
The veteran's absent left kidney and resulting hypertrophy in
the remaining kidney are congenital abnormalities for which
service connection may not be granted. 38 C.F.R. § 3.303(c).
The evidence also indicates that the veteran experienced
kidney stones (renal calculi) during service due to a
service connected thyroid disability. Service connection is
currently in effect for kidney stones.
Beginning in the early 1990s the veteran has also been
diagnosed as having renal insufficiency manifested by
elevated creatine. However, the service medical records
contain no findings or diagnosis of renal insufficiency and
such is not one of the diseases listed in 38 C.F.R.
§ 3.309(e) as attributable to the veteran's conceded exposure
to Agent Orange while serving in Vietnam and the record does
not contain any competent medical evidence that would
otherwise associate the veteran's renal insufficiency to
exposure to herbicides such as Agent Orange. Moreover, after
a recent VA genitourinary examination, the diagnoses and
findings only included the veteran's congenital absent left
kidney and a history of kidney stones for which service
connection is already in effect. No other kidney pathology
has been diagnosed that could account for the veteran's renal
insufficiency.
In view of the foregoing, the Board concludes that
entitlement to service connection for a kidney disability,
other than nephrolithiasis, claimed as a residual of exposure
to Agent Orange must be denied.
In regard to the veteran's claim for entitlement to service
connection for peripheral neuropathy, claimed as a residual
of exposure to Agent Orange, the Board observes that
peripheral neuropathy was not clinically diagnosed during
service and has not been shown to exist at any time since the
veteran's discharge from active service. A recent VA
neurological examination, which included appropriate
diagnostic testing, found that the veteran did not have
peripheral neuropathy. Since that is the case, service
connection for peripheral neuropathy, claimed as a residual
of Agent Orange exposure is clearly not warranted.
ORDER
Entitlement to service connection for a kidney disability,
other than nephrolithiasis, claimed as a residual of exposure
to Agent Orange, is denied.
Entitlement to service connection for peripheral neuropathy,
claimed as a residual of exposure to Agent Orange is denied.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.